State v. Nargo

193 So. 3d 1263, 2016 La. App. LEXIS 1082, 2016 WL 3077368
CourtLouisiana Court of Appeal
DecidedJune 1, 2016
DocketNo. 15-779
StatusPublished
Cited by1 cases

This text of 193 So. 3d 1263 (State v. Nargo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nargo, 193 So. 3d 1263, 2016 La. App. LEXIS 1082, 2016 WL 3077368 (La. Ct. App. 2016).

Opinion

THIBODEAUX, Chief Judge.

| defendant Reado Nargo was charged by grand jury indictment with the second degree murders of Johnny L. Brimzy (John Brimzy) and Stanley J. Brimzy in violation of La.R.S. 14:30.1. Nargo pled not guilty to both counts. After a trial by jury, he was found guilty of the second degree murder of John Brimzy and guilty of the responsive verdict of manslaughter for the killing of Stanley Brimzy. Nargo was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the ihurder of John Brimzy, and forty years at hard labor for the manslaughter of Stanley Brimzy, to run consecutively. His Motion to Reconsider Sentence was denied.

Nargo now appeals his convictions, arguing that the trial court erred when it determined the recorded and non-recorded statements allegedly made by Nargo were freely and voluntarily made, and thus admissible; that evidence was improperly published to the jury prior to their authentication, identification, or admission into evidence, therefore making it unavailable for appellate review; that trial counsel rendered ineffective assistance of counsel by failing to object to the publishing of this evidence; and that the trial court erred in failing to assure that discussions and arguments of counsel made during sidebar proceedings were recorded and preserved for appellate review.

After- the record was lodged in this court, appellate counsel filed two motions to supplement the appellate record, which were granted. In the first motion to supplement, appellate counsel requested that this court order the court reporter to prepare a transcript of three bench conferences, and in the second, a ^transcription of statements made by Nargo and played for the jury that was not admitted into evidence. For the following reasons, we' affirm.

ISSUES

We must determine:

(1) whether the trial court erred in concluding that Nargo knowingly, intelligently, and voluntarily gave the recorded and non-recorded- statements after waiving his rights;
(2) whether the trial court erred in considering recordings which had not been admitted into evidence at the admissibility hearing in reaching its decision that the statements made by Nargo were admissible at trial;
(3) whether the trial court erred in publishing the recorded statements to the jury prior to their authentication or admission into evidence;
(4) whether trial counsel’s performance fell below that guaranteed by the Sixth Amendment; and
[1266]*1266(5) whether the trial court erred in failing to assure sidebar discussions were recorded and preserved, resulting in the denial of Nargo’s.constitu-tional right on appeal.

n.

FACTS AND PROCEDURAL HISTORY

In the early morning of January 26, 2012, Detective Michael Wilson received a call about a shooting in Campti, Louisiana. Upon arrival at the scene, Detective Wilson found the body of Stanley Brimzy in the road in front of. Claudine Caldwell’s trailer home (Nargo’s girlfriend). . The body of a second victim, John Brimzy, was found later that morning approximately 100 yards away |3from the trailer home. It was established that Stanley Brimzy was killed by a single gunshot to the head, and that John Brimzy suffered three gunshot wounds'to the head.

Caldwell testified that she was at work when she received a call from Nargo about a break-in at her home. Caldwell returned home, and Nargo informed her that his AK-47 firearm had been stolen, and that he believed Stanley and John Brimzy were responsible. Soon thereafter, Stanley- and John Brimzy approached Caldwell’s- trailer home in a truck-. Caldwell testified that she heard Nargo ask Nathan Davis, who was also present at the scene, where “the heat” (pistol) was. Davis testified that he gave Nargo a pistol. Sylvester Millage, also present at the scene, testified that he also saw Nargo in possession of the pistol given to him by Davis. Caldwell, Davis, and Millage each testified that they witnessed Nargo approach Stanley while holding the pistol. Moments later, Caldwell heard a gunshot, and saw John Brimzy flee from the truck. Sylvester testified that he saw Nargo running behind John Brimzy and shooting at him. John Brimzy was later found dead across the nearby railroad tracks. After the killings, Nargo was brought in for questioning by Detective Wilson, at which time he admitted to killing both victims. During questioning, recorded and non-recorded statements were given.

HI.

LAW AND DISCUSSION

Failure to Admit the Recordings into Evidence

Nargo first contends-that the trial court erred in considering recordings which had not been admitted into evidence at the admissibility hearing in reaching |4its decision that the statements made by Nargo were voluntary.and, therefore, admissible at trial. We disagree.

In State v. Lloyd, 48,914 (La.App. 2 Cir. 1/14/15), 161 So.3d 879, wit denied, 15-307 (La.11/30/15), 184 So.3d 33, the second circuit found that it could consider on appeal audio recordings that were played for the jury but not admitted into evidence. The defendant. argued that while the recordings were played in court, they should not have been considered by the trial court. Id. The Lloyd court offers us guidance, and states the following:

At trial, the prosecution played recordings of Mrs. Lloyd’s call to the police and the defendant’s interview with Detective .Strickland on the night the offense occurred. Defendant’s counsel did not object to the use of the recordings at trial. With .regard to the defendant’s statement to Detective Strickland, the' record is clear that defense counsel wanted the recording played in open court so the trial court could hear it. However, the prosecution failed to formally introduce the recordings into evidence after they were played in the trial court and they were not included in the record on appeal. In this court defense counsel filed a motion to. supplement the
[1267]*1267record, noting the absence of the recordings in the record.

Id. at 892. The second circuit found that since the recordings were played in open court without objection by the defendant, the recordings were tacitly admitted and the trial court did not err in considering them. Lloyd, 161 So.3d 879. See State v. Rodriguez, 554 So.2d 269 (La.App. 3 Cir. 1989), writ granted in part and remanded, 558 So.2d 595 (La.1990).1

During the State’s questioning of Detective Wilson, a hearing was held outside of the jury’s presence regarding the admissibility of inculpatory statements made by Nargo. After hearing testimony and argument, the trial court Irfound that Nargo’s statements were freely and voluntarily given after being fully advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Subsequently, the State played the recording of Nargo’s statements to the jury, but did not seek to admit the recording into evidence. As previously stated, no objection was made by the defense regarding this omission. Consequently, Nargo’s statements were properly considered by the trial court in ruling on the voluntariness of those statements.

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Bluebook (online)
193 So. 3d 1263, 2016 La. App. LEXIS 1082, 2016 WL 3077368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nargo-lactapp-2016.